World Court Digest

¤Aerial Incident of 3 July 1988 (Islamic
Republic of Iran v. United States of America)
Order of 13 December 1989,
I.C.J.Reports 1989, p. 132

[pp. 157-258 S.O. Shahabuddeen] For the reasons given, it may be
contended that the practice referred to is not strictly consistent with the
terms of the existing rule, in the sense that it tends to inhibit a respondent
in the exercise of a seemingly absolute right available under the strict terms
of the rule to file a preliminary objection before the filing of the Memorial.
But, however arguable that might be, the possibility of a different
interpretation of the rule could not be wholly excluded, and of course the
competence to interpret the Rules lay with the Court. It is general experience
that formal rules of procedure - at any rate where no conflict with an
overriding constituent instrument is involved (a caveat to which I attach
importance in this field) - develop through the way in which they are
interpreted and applied by the court concerned as evidenced by its practice.
The real question then is, should this Court at this stage overrule the
interpretation of Article 79 of the Rules, which is implicit in its practice, on
the ground that it is erroneous? The Court is not committed to any doctrine of
binding precedent, but it does respect its own jurisprudence. Consequently,
though competent to reverse its previous holdings on the law, the Court is not
expected to exercise that competence lightly and without good reason (Sir Hersch
Lauterpacht, The Development of International Law by the International Court,
1958, p. 19). It may be too general a way of putting the position merely to say
that the Court should act cautiously. But what then should be the criteria
guiding the prudence of the Court in a procedural matter of this kind? In the
absence of any clear guidelines having been adopted by the Court, it seems to me
that, in a case of this particular kind, it would be reasonable for the Court to
apply something corresponding to the twin tests of clear error and public
mischief as known to the upper levels of judicial activity in many
jurisdictions. There should, I think, be clear error in the sense that the Court
must be satisfied that the opposing arguments are not barely persuasive but are
conclusively demonstrative of manifest error in a previous holding. And there
should be public mischief, or something akin to it, in the sense that the
injustice created by maintaining a previous but erroneous holding must
decisively outweigh the injustice created by disturbing settled expectations
based on the assumption of its continuance; mere marginal superiority of a new
ruling should not suffice.